A trumpeter, a combat training specialist and a personnel clerk took on the South African National Defence Force (SANDF) in court this week over the military’s policy on HIV-positive soldiers.
The South African Security Forces Union, Sipho Mthethwa and two other applicants known only as TCM and ZSM applied to have lifted an effective blanket ban on the employment of people with HIV and the promotion of soldiers who are already HIV-positive. They also want military employees with HIV to be eligible for international deployment missions if they are physically fit. At present HIV-positive soldiers are deployed only inside South Africa. International missions carry higher rates of pay — up to an extra R13 000 a month, according to the applicants’ papers.
The battle over HIV employment and the military has been under way for about 13 years, according to the Aids Law Project, which represents the applicants.
The applicants argue that the SANDF’s HIV policy has failed to reduce levels of HIV infection among its employees, with about 23% of the defence force known to be carrying the virus.
They say that the blanket ban on international deployment, promotion and recruitment on the grounds of HIV status is unconstitutional, discriminatory, irrational, inconsistent and reinforces stigma. The long period during which HIV-positive people stay healthy without treatment, coupled with the effect of drugs that can restore people with Aids to health, means that individual fitness rather than HIV status alone should be the criterion.
The applicant known as TCM applied to join the SANDF as a trumpeter. He was selected to perform in the United States, given a scholarship to study music in Norway and was a music teacher before passing his audition for the military band with flying colours. His offer of employment was withdrawn when he tested HIV-positive during pre-employment testing.
Sipho Mthethwa is an expert in gun technology and is in charge of physical fitness training, but in terms of the policy cannot be deployed abroad or promoted because of his HIV status.
ZSM was a member of Umkhonto weSizwe before being integrated into the SANDF and working as a personnel clerk. He passed all fitness tests and ran 8km a day but was ineligible for promotion because of his HIV status.
In response the SANDF says it is reviewing its policies on HIV-positive employees, but “at present the SANDF is not satisfied that science has advanced to the stage it can be guaranteed that people living with HIV can withstand the extremely stressful conditions associated with deployment”.
The effect of HIV infection on the ability of people to withstand strenuous activities is a significant factor in the SANDF’s decision, according to its court papers. The SANDF says there is “real danger that deployment may result in progression of the disease” and that someone might be “asymptomatic but neurocognitively compromised”. It cites concerns about being able to provide chronic medical treatment, such as antiretroviral drugs, to soldiers during international deployments.
The applicants’ court papers point out that pilots and infantry are expected to complete the most arduous physical training — yet pilots are allowed to deploy even when HIV-positive. As a result “an HIV-positive pilot may fly but an HIV-positive trumpeter cannot play in the air force band”, say the applicants’ court papers.
Among the evidence supplied by the respondents is a paper known as the “Zimbabwean study”, which is undated but based on research involving HIV-positive would-be military officers in Zimbabwe. The study claims to show that the strenuous training accelerated progression to Aids, resulting in the deaths of two HIV-positive individuals during the intensive training part of the study. In the six months after being discharged from the training course, eight HIV-positive soldiers were diagnosed with “full-blown Aids” and of these six died.
The applicants refer to the ZimbabÂÂwean study, which they say has not been peer-reviewed, as “highly unethical” and “Nazi-like”.
In his affidavit Dr Leslie London of the University of Cape Town compares the Zimbabwean study with the “infamous Tuskagee syphilis experiment”, referring to the infamous research in the US, which left black people with syphilis untreated to study the progress of the disease.